Riddell v. Peck-Williamson Heating & Ventilating Co.

• Decision Date: 23 June 1902
• Citation: 69 P. 241,27 Mont. 44
• Parties: RIDDELL et al. v. PECK-WILLIAMSON HEATING & VENTILATING CO.
• Court: Montana Supreme Court

69 P. 241

27 Mont. 44

RIDDELL et al. v. PECK-WILLIAMSON HEATING & VENTILATING CO.

Supreme Court of Montana

June 23, 1902

Appeal from district court, Gallatin county; F. K. Armstrong, Judge.

Action by J. A. Riddell and another against the Peck-Williamson Heating & Ventilating Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Luce & Luce and C. B. Mathews, for appellant.

Hartman & Hartman, for respondents.

PIGOTT J.

This action was brought on a contract to recover judgment for $9,312.96, besides interest. The plaintiffs recovered a judgment for $9,743.67, with costs. From it and an order refusing a new trial, the defendant prosecutes these appeals.

Riddell and Suiter were copartners. Suiter, in his own name, but for the benefit of the firm, on August 5, 1895, entered into a contract with the executive board of the state Agricultural College for the erection by him of certain buildings. Thereafter the defendant (a corporation) and the executive board made a contract by which the defendant agreed to install a heating and ventilating plant in the buildings. Subsequently, and on August 15, 1896, Suiter, in his own name, but for the partnership, entered into a contract, which was reduced to writing, and subscribed by the parties, as follows: "Bozeman, Mont., Aug. 15th, 1896. Agreement entered into this date by and between Charles Suiter, of Helena, Montana, general contractor for furnishing the material and building the buildings for the Montana State Agricultural College, Bozeman, Montana, the party of the first part, and the Peck-Williamson Heating and Ventilating Company, Cincinnati, Ohio, party of the second part. The party of the first part agrees to furnish all the extra material and do all the extra labor that is now not contracted for in general contract for buildings that is necessary to install the heating, ventilating, and sanitary apparatus of the party of the second part in the Montana State Agricultural College Buildings, Bozeman, Montana. All material and labor party of the first part furnishes party of the second part to be paid for by party of the second part according to the following schedule of prices,"--the remainder of the instrument being devoted to the rules for measuring the work, the description of the material to be used, and the schedule of prices. The contract does not expressly provide when payment shall be made. Prior to June 22, 1897, the plaintiffs had performed labor and furnished material under the terms of the contract, which, according to the schedule of prices, amounted to $9,312.96, and which entered into and became parts of the buildings, and cannot be removed. From that day they ceased work, and have never done anything further under the contract. They abandoned it because the defendant refused to pay for the labor and material already performed and furnished, and were unable to proceed for lack of funds. They left undone work amounting to $2,227.67. Their second amended complaint purports to state two causes of action. The first cause of action is based upon the written contract. They allege performance thereunder to the extent of $9,312.96, and refusal by the defendant to pay and aver that at the time the written contract was signed there was an oral agreement that payments should be made as the labor and material were done and furnished and measured in the buildings and approved by the architect or by the defendant; that a local usage or custom to that effect was in existence, and that the written contract was made with reference thereto, and with the intention that the usage and custom were to control its interpretation. In the second cause of action the plaintiffs counted upon the furnishing of the material and upon the doing of the labor mentioned at the request of the defendant and alleged the value thereof to be $9,312.96; in short, a quantum meruit and valebat count.

1. Can the action be maintained upon the special contract? The defendant contends that it was prematurely brought. Upon its face the contract is entire, and the consideration single. The intention of the parties, as disclosed and evidenced by the terms of their engagement reduced to writing, was that the defendant should not become indebted to Suiter unless and until he furnished all the material and did all the labor specified in the contract. There was in the contract no time expressly appointed for payment, but the law made the price due and payable upon complete performance by Suiter or his firm. Substantial performance by Suiter of his promises was a condition precedent to the company's liability under the express contract to pay the whole or any part of the consideration. Franklin v. Schultz, 23 Mont. 165, 57 P. 1037. The fixing of prices upon the different items did not operate as a severance (Isaacs v. McAndrew, 1 Mont. 437); it was a mere means of ascertaining the total compensation to be paid in the event Suiter executed the undertaking. The plaintiffs alleged that at the time the written contract was made an oral agreement was entered into that payments should be made, in conformity with a usage and custom, as the work was done and the material furnished and measured to the approval of the architect or of the defendant, and that the contract was made with reference to such usage and custom, and with the intention that the interpretation of the contract should be controlled thereby. We doubt whether the evidence was sufficient to establish either such alleged oral agreement or such alleged usage or custom. For the purposes of these appeals, let the sufficiency of the evidence be assumed; let it be assumed that the oral agreement accompanied the making of the written contract, and that such a custom as the one pleaded then existed; and let it further be assumed that, the custom and oral agreement being proved, payment as the work progressed was a condition precedent to plaintiffs' obligation to complete the terms of the written contract. This evidence tended to prove a severance sub modo or an apportionment and, if payments were to be made according to custom or as orally agreed, then a cause of action accrued as soon as the defendant failed to make a payment when it should have been made. Default in making such payment would have entitled the plaintiffs, if they continued to perform under the contract to recover judgment for the price of the work already done; or such default would have warranted them in treating the special contract as at an end, and authorized them to maintain an action on the implied promise of the defendant to pay the reasonable worth of the labor done and material furnished. They could, at their option, have pursued either course. Was the evidence admissible over the objections interposed by the defendant? Its competency was seasonably challenged by objections and motions to strike on the ground that the plaintiffs sought thereby to alter or contradict the terms of the written contract. To the overruling of these the defendant reserved exceptions. Section 3132 of the Code of Civil Procedure, which declares a common law rule ( Mercantile Co. v. Hopkins, 21 Mont. 13, 52 P. 561), provides that: "When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: (1) Where a mistake or imperfection of the writing is put in issue by the pleadings. (2) Where the validity of the agreement is the fact in dispute. But this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in section 3136, or to explain an extrinsic ambiguity, or to establish illegality or fraud. The term 'agreement' includes deeds and wills, as well as contracts between parties." Section 2204 of the Civil Code declares the familiar principle that "when a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this title." Section 2186 of the Civil Code provides: "The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument." Section 3146 of the Code of Civil Procedure announces no new rule when it prescribes that evidence may be given upon a trial of "usage, to explain the true character of an act, contract or instrument, where such true character is not otherwise plain; but usage is never admissible, except as an instrument of interpretation." It is perfectly clear that the evidence was erroneously received. The rule which prohibits the reception of evidence of oral promises or agreements made prior to or contemporaneously with the execution of a written contract purporting to...